Dodson v. Commonwealth

• Decision Date: 22 April 1946
• Docket Number: Record No. 3086.
• Citation: 185 Va. 57
• Parties: AUBREY S. DODSON, JR., AND ANOTHER v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 57

185 Va. 57

AUBREY S. DODSON, JR., AND ANOTHER v. COMMONWEALTH OF VIRGINIA.

Record No. 3086.

Supreme Court of Virginia, Richmond.

April 22, 1946.

Present, All the Justices.

1. APPEAL AND ERROR — Suspension of Sentence to Perfect Appeal — Period of Suspension. — Under section 4930 of the Code of 1942, the period of suspension of sentence in order to give accused time to apply for a writ of error is within the sound judicial discretion of the judge, but this discretion cannot be exercised in such manner as to deprive one convicted of crime of a fair opportunity to be heard.

2. NEW TRIALS — Grounds — Remarks and Action of Court — Case at Bar. — In the instant case, a prosecution under the Alcoholic Beverage Control Act, error was assigned because it was said that the presiding judge appeared to have been of the opinion that defendants were guilty, and in various ways, inadvertently perhaps, in the course of the trial conveyed this impression to the jury. On examination, the sheriff said that a witness had told him that he had previously bought whiskey at accused's tavern. Objection was made to this and counsel asked that the jury be instructed to disregard this statement. The court said: "Oh, yes, the jury will disregard what Pete Johnson told him." The tavern register was offered in evidence, and objection to its introduction was made on the ground that a particular offense was charged to have been made on a certain date. The court said that under the statute the time was not limited and that if need be the warrant could be amended to show how the register was kept and later said that the warrant was broad enough and that the register could be introduced. Still later the register was again brought into question and the court said: "All right, gentlemen of the jury, go back in your room. We will be here the balance of the week." Accused was questioned as to his service in the Navy and as to the date of his discharge. The court contended that the discharge had no bearing on the case and that the kind of discharge made no difference. The court asked a witness if he didn't know he was under indictment for perjury and for having lied in court before. He was interrogated as to why he lied. When this same witness was asked whether accused knew that the witness was going to sell whiskey in his tavern and replied in the affirmative, the court said: "That is one time the truth was told in court." Later he inquired of another witness whether he had seen money exchanged between the purchaser and seller of the whiskey. While accused was undertaking to explain that some of the irregularities charged against him occurred while he was in the Navy, the court told him: "Let counsel argue the case. Just ask questions Mr. Thompson, and you answer the question and don't argue." Counsel for the accused asked for a suspending order to apply for a writ of error and was given thirty days. He explained that he had not completed the record in this time since his time had been taken up by previous commitments. The court denied a further motion for suspension and stated that such denial was due to the failure to act with the degree of diligence and good faith contemplated by the court at the time the execution of the sentence was suspended.

Held: That while no one of the incidents, of itself, would warrant a reversal, taken in the aggregate the jury knew what the judge though and were influenced by it.

Error to a judgment of the Circuit Court of Campbell county. Hon. Chas. E. Burks, judge presiding.

The opinion states the case.

Basil G. Watkins and L. H. Shrader, for the plaintiffs in error.

Abram P. Staples, Attorney General, and V. P. Randolph, Jr., Assistant Attorney General, for the Commonwealth.

HOLT, J., delivered the opinion of the court.

Separate warrants issued against Aubrey S. Dodson, Jr., and Arthur G. Dodson. In them it is charged that they did on the 6th day of April, 1945, unlawfully operate a public nuisance on Rt. 29, known as the Old English Tavern, violating section 55 of A.B.C. Act, Code 1942, section 4675(55).

Their cases came on to be heard by the Trial Justice, who on June 8, 1945, found each of them guilty. They appealed to the Circuit Court of Campbell County; their cases came on to be heard on September 12, 1945. There was there pending against them in some manner not made entirely clear four separate warrants. In addition to the public nuisance charge, each was charged with the possession of illegal whiskey. A jury was empanelled and evidence heard. On motion of the defendants the charges of possessing illegal whiskey were dismissed. On the nuisance charges these verdicts were returned: "We the jurors do find A. S. Dodson, Jr., guilty of operating a house of nuisance as charged in the warrant and fix punishment and fine at $100. Dollars & 60 days in jail. (Signed) W. L. Burton, Foreman", and "Sept. 12, 1945. We the jurors do find Arthur Dodson guilty of operating a house of nuisance as charged in the warrant and fix punishment and fine at $100. Dollars fine & 60 days in jail. (Signed) W. L. Burton, Foreman".

To these judgments the Court adds: "The defendants having indicated their intention to appeal, execution is suspended for thirty days in order to enable the said defendants to apply to the Supreme Court of Appeals of Virginia for a writ of error and supersedeas. It is further ordered that the said term in jail be served on the State Convict Road Force, if said defendants are physically fit for road work; but if not, then on the State Farm for Defective Misdemeanants."

On October 26, 1945, we granted a writ of error and supersedeas.

The Dodsons are brothers. They purchased a building known as the Old English Tavern near Lynchburg in Campbell County on Route 29 and operated a tavern there. Shortly after their purchase, Aubrey S. Dodson, Jr., enlisted in the Navy and served as a commissioned officer until January, 1945.

Aubrey, at that time, had a license to operate a business in this Tavern which authorized him to sell soft drinks and food. During his absence it was in charge of one Norman Mayberry, supervised by the brother, Arthur, who lived near by.

On April 6, 1945, Aubrey, who had been discharged from the Navy, was at home, and went to Lynchburg to see his mother who was sick in a hospital there, leaving Mayberry in charge. It was then that Arthur, who lived in the country, came to the Tavern to inquire by telephone as to his mother's condition.

At this time the Sheriff of Campbell County, who had reason to believe that in the operation of this Tavern the law was being violated, secured the services of one Pete Johnson to secure the necessary evidence. He, with his deputies and Johnson, went to the Tavern and sent Johnson in to buy whiskey. For that purpose he gave him a ten dollar bill and a five dollar bill, both marked for identification. This was ten o'clock at night on April 6th. They stood on the outside to watch. Johnson bought a one-fifth quart of whiskey, price seven dollars, and tendered in payment this ten dollar marked bill. About this time Arthur came into the Tavern and at Mayberry's request gave to Johnson the three dollars in change due to him. The five dollars which Johnson had he still has unless he has spent it. Aubrey, upon his return from Lynchburg, found the Tavern door locked.

Among errors assigned it is said that the presiding judge appears to have been of the opinion that the defendants were guilty, and in various ways, inadvertently perhaps, in the course of the trial conveyed this impression to the jury.

While the Sheriff, J....